How far will the courts go in ensuring the right to a basic education?

Na abstract available.am201

Proposals for the review of the minimum age of criminal responsibility

The minimum age of criminal capacity in South Africa used to be seven years of age, one of the lowest in the world. The Child Justice Act raised that age from seven to 10 years, and retained the rebuttable presumption of criminal incapacity for those children aged 10 years or older but under the age of 14. The Act also provided for a review of the minimum age, with a view to raising it, within five years of the Act's commencement. This article explores the current international debates about setting a minimum age of criminal responsibility, to garner ideas for the upcoming review. The relevant provisions of the Child Justice Act and their practical implementation are interrogated. The conclusion is that the current provisions fall short of international standards in a number of ways, and that children's rights are at risk in the current system. The setting of a new, single minimum age of criminal responsibility is proposed, together with the abolition of the doli incapax presumption which will obviate the need for the assessment of criminal capacity. The author prefers 14 as the new minimum age, but considers 12 the more likely age to be accepted by the legislature.http://www.jutalaw.co.za/catalogue/itemdisplay.jsp?item_id=3599am201

The automatic review of child offenders’ sentences

This case note considers the automatic review of child offenders’ cases. Adult offenders’ cases go on ‘review in the ordinary course’ in limited circumstances, but section 85 of the Child Justice Act aims to provide automatic review in a wider range of cases. The wording of section 85 and how it should be read with the Criminal Procedure Act has caused interpretational difficulties. Two cases have provided answers to certain questions: Do all cases regarding children under 16 years go on review? Do all cases regarding custodial sentences (that are not suspended) go on review, regardless of the experience of the magistrate, whether it was a regional court that issued the sentence, the length of the sentence and even if the child was legally represented? The courts have answered these in the affirmative. In reaching these conclusions, the courts have interpreted the law within the context of the Child Justice Act as a whole, and within the provisions of section 28 of the Constitution.http://www.issafrica.org/sacq.phpam201

Rol van die howe om die reg op basiese onderwys in 'n demokratiese Suid-Afrika te verwesenlik : 'n kritiese ontleding van onlangse onderwysregspraak

Hierdie artikel ontleed onlangse regspraak aangaande die reg op basiese onderwys. Die "vier A-skema", wat deur 'n voormalige spesiale rapporteur op onderwys van die Verenigde Nasies voorgestel is en deur die Komitee op Sosiale-, Ekonomiese- en Kulturele Regte in sy Algemene Kommentaar 13 ondersteun is, vorm die raamwerk vir die ontleding. Die vier A-skema omvat beskikbaarheid (availability), toeganklikheid (accessibility), aanvaarbaarheid (acceptability) en aanpasbaarheid (adaptability). 'n Kritiese ontleding van die regspraak dui aan dat daar probleme in die lewering van basiese onderwys in Suid-Afrika bestaan met betrekking tot elkeen van die vier verwante elemente. Sommige van die hindernisse het betrekking op die versuim om noodsaaklike vereistes soos infrastruktuur, skryfbehoeftes en vervoer te voorsien. Ander uitdagings hou verband met geskille rakende die magte van skoolbeheerliggame en skole teenoor die magte van provinsiale departementshoofde, lede van provinsiale uitvoerende komitees en, ten opsigte van nasionale beleid, die nasionale Minister van Basiese Onderwys. Die artikel wys dat litigasie 'n belangrike rol speel om die reg op basiese onderwys te verwesenlik, geskille te besleg en die toewysing van dienste en middele aan leerders te verseker. Die slotsom is dat die soms noodsaaklik en gepas is om die geregtelike roete wat binne 'n grondwetlike demokrasie beskikbaar is, te volg om die reg op basiese onderwys te verwesenlik.http://www.dejure.up.ac.za/am2014ai201

S v Williams : a springboard for further debate about corporal punishment

In an early judgment of the Constitutional Court, S v Williams, Justice Langa found that judicial whippings were unconstitutional because they violated young offenders’ rights to dignity and humane treatment. Former Chief Justice Langa was also a member of the unanimous court that found the law prohibiting corporal punishment in schools to be a reasonable and justifiable infringement of their parents’ right to religious freedom. However, s 12 of the South African Constitution guarantees everyone the right to be protected from all forms of violence, either from public or private sources. This contribution considers how the court might deal with a challenge to the constitutionality of the common-law defence of reasonable chastisement, which permits corporal punishment of children by their parents in their own homes.http://www.journals.co.za/ej/ejour_ju_jur.htmlam201

Leveraging funds for school infrastructure : the South African 'mud schools' case study

In 2013 there are still thousands of children in South Africa attending dilapidated mud schools, schools lacking sanitation, and schools without electricity. The situation took a positive turn in 2009 when the government was taken to court about the severe infrastructure backlogs in the Eastern Cape province. The case settled out of court, and resulted in a memorandum of agreement which pledged R 8.2 billion over three years. However, the allocation of these and other funds has not immediately translated into tangible results on a broad scale. This is because large infrastructure projects require management capacity that is lacking in Department of Education in South Africa. This paper demonstrates the justiciability of the right to education, and shows that litigation, implementation monitoring and budgetary analysis may be new tools to lever funds for education at the country level, and to hold government accountable for efficient spending. The significance of this to the post-2015 development context is that developing countries must find new methods for ensuring the provision and expenditure of funds from existing budgets within their own countries. In order to achieve this education activists must forge new alliances with partners who have knowledge in budgeting, budgetary analysis and where necessary, litigation.http://www.elsevier.com/locate/ijedudevhb201

The impact of children's rights on criminal justice

South Africa’s criminal justice system has traditionally provided protection for the rights of three categories of persons, namely perpetrators, victims and witnesses – both adults and children. In recent years, however, there has been increasing jurisprudential recognition of a fourth category of affected persons whose rights and interests need to be independently protected. This category is the children of perpetrators. There is an emerging judicial trend towards considering children’s rights in all instances where a court exercises a discretion that will ultimately curtail the right to parental care. It is this trend that the subsequent case descriptions seek to highlight.http://www.jutalaw.co.za/catalogue/itemdisplay.jsp?item_id=3599nf201

Victims’ mitigating views in sentencing decisions : a comparative analysis

This article explores the arguments for and against victims‟ mitigating opinions on sentence. It describes a recent South African appeal case, compares it with a similar New Zealand appeal court judgment, and then investigates the legal position in England and Wales. It appears that, as a general rule, victims‟ recommendations as to penalty must be avoided. However, unlike in South Africa and New Zealand, the jurisprudence in England and Wales has developed exceptions in this regard when certain categories of victims request a more lenient sentence. Several case studies from England and Wales reveal that, through considering the harms and needs of victims and ameliorating the sentences accordingly, a restorative justice approach is blended with a just deserts requirement for the protection of lower limits in sentencing. This ensures that the principles of proportionality, certainty and consistency are still adhered to. It is concluded that, had the South African court taken proper cognisance of these comparative legal developments, it would, at very least, have created a better precedent by providing guidelines to inform the complex, but important, process of considering victims mitigating opinions in the sentencing process.http://ojls.oxfordjournals.org2017-02-28hb201

Childhood sexuality in Africa : a child rights perspective

It is an undeniable fact that children in Africa face many challenges in their sexual health and development trajectories. One of the challenges that children face is ideological, that is, the social construction of childhood sexuality and the effects of that construction on law and policy and on what information and services children may access regarding sex and sexuality. Adults tend to represent children as sexually innocent and incompetent, and their actions toward children focus on preserving this sexual innocence and averting sexual risks. The article discusses how this ideological positioning of children shapes sexuality education, and the criminalisation of sexual conduct between consenting adolescents. Legal instruments and related interpretive instruments such as court judgments and the General Comments and Recommendations of treaty-monitoring bodies play an important role as they construct meanings of childhood sexuality that align with or contradict dominant representations of childhood as sexual innocence which has effects for children’s sexual rights. The article analyses how General Comments of the Committee on the Rights of the Child and the African Committee of Experts have represented childhood sexuality. It argues for the transformation of views about children toward perceiving children as having sexual agency to the extent of their evolving capacities, as a prerequisite to addressing challenges that children face in Africa relating to sexuality. It recommends that the African Committee of Experts should, in its interpretation of the African Children’s Charter, construct childhood sexuality positively to represent children as sexual agents rather than positioning them as sexually innocent which also implies viewing any sexual activity of the child as inherently harmful or as a mark of deviance or corruption.https://www.ahrlj.up.ac.zapm2021Centre for Human Right

The development of a fledgling child rights jurisprudence in Eastern and Southern Africa based on international and regional instruments

This article charts the development of a child law jurisprudence that is emerging in Eastern and Southern Africa. The article records how judgments are beginning to make reference to the United Nations Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child, and even to less prominent instruments such as the Hague Convention on the Protection of Children and Co-operation in Respect of Inter-Country Adoption (1993) and the Hague Convention on Civil Aspects of International Child Abduction. Attention is paid to certain textual differences between the UN Convention and the African Children's Charter, and the extent to which these discrepancies have played a role in the development of a child law jurisprudence that might be described as uniquely African. The article considers judgments in the region that have expressly dealt with the 'best interests' principle. Examples from Botswana, South Africa and Kenya are described. The second area discussed is the imprisonment of children's primary care givers, in relation to which article 30 of the African Children's Charter, dealing with the children of imprisoned mothers, is highlighted. Other examples arise in relation to differences in the wording of the UN Convention and the African Children's Charter regarding inter-country adoption, which is the third area of case law discussed. High-profile cases relating to adoption applications brought by Madonna before the Malawian courts are amongst those examined. The article concludes that there is evidence of the beginnings of a specifically African jurisprudence in child law. It is noted, however, that more can be done to promote children's legal rights in the region through the ratification by more African countries of the Hague Conventions, and also through courts in the Eastern and Southern African region taking note of each other's jurisprudence